Criminal Records and ID Issues

CRIMINAL RECORD ISSUES

For Applicants

An applicant is ineligible for a visa or admission if convicted of a crime involving “moral turpitude” or in violation of any law of a State, the United States, or a foreign country related to a controlled substance.1 The Board of Immigration Appeals has defined malum in se crimes (often referred to as crimes of moral turpitude) to be those crimes “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons.”2 Examples of malum in se crimes are: larceny, rape, and murder. An individual currently in the U.S. but ineligible for admission should not apply for naturalization because immigration authorities will start proceedings to have him or her deported.

For Legal Residents

Individuals who have been awarded legal immigration status remain at risk for deportation if they commit a crime. As a general rule, most crimes that are considered malum in se (see above) are deportable offenses.3 Legal permanent residents, who would like to travel abroad, need to consider whether reentry would succeed. One of the harshest consequences of changes to the immigration law in 1996 was to apply some of the strictest provisions retroactively.4 This means that anyone who has any criminal convictions should speak with an experienced immigration attorney before doing anything which would lead to a review of their immigration record. Actions which can trigger review (and possible removal proceedings), include: international travel, any application with DHS such as applying for naturalization or applying to replace a “green card,” contact with the police (arrests, traffic stops), and contact with border patrols within 100 miles of the U.S. Border. Any foreign national who has a criminal conviction is strongly advised to consult with a qualified immigration attorney to determine what effect the conviction(s) may have on their immigration status.

REAL ID CONCERNS

The REAL ID Act is a federal law enacted in 2005. It mandates security, authentication, and issuance procedures standards for state driver licenses and ID cards, which must be followed in order for the ID’s to be considered valid for “official purposes.” The Secretary of Homeland Security defines “official purposes” as presenting state driver licenses and identification cards for boarding commercially operated airline flights and entering federal buildings and nuclear power plants. The REAL ID Act has created potential problems for asylum seekers and transgender people trying to legitimately acquire or change identification.5

Asylum

Asylum officers are now given broad discretion in requesting that "the applicant should provide evidence which corroborates otherwise credible testimony,” including proof of persecution and additional proof of identification from those in their home country. This kind of proof can be very difficult to obtain. REAL ID gives asylum officers the right to reject asylum based on material inconsistencies. In many cases, inconsistencies in documents, such as different first names or gender references may simply reflect the applicant's efforts to navigate different systems as a transgender person. However, these inconsistencies may be flagged by asylum officers nonetheless. Inconsistencies like these are very common, since people seeking asylum can be fearful and distrust officials, or lack understanding of the system and cultural codes of conduct. Furthermore, the REAL ID system gives Immigration Judges the power to reject an asylum applicant's case based on their demeanor, such as appearing uncomfortable or laughing nervously, things people might inadvertently do while recounting serious or traumatic details.

State Identification Documents

REAL ID requires the states to adopt stricter laws regarding the issuance of state ID cards, which could make it more difficult for transgender people to obtain legitimate ID especially if the state in which they were born does not re-issue birth certificates (such as Ohio, Tennessee, and Idaho). These requirements force states to make electronic copies of all documents used to support a license or state ID application so the state will also make copies of documents used to change the name and/or gender marker on a license. These electronic copies will then be available in a national database to an undefined group of people, which gives rise to privacy concerns.


  1. 8 U.S.C. § 1182(a)(2)(B). 

  2. Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994). 

  3. INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). 

  4. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208. 

  5. Information in this section is obtained from The Real ID Act: Bad Law for our Community, National Center for Transgender Equality & Transgender Law Center, Last visited August 1, 2012.